News

Published 9.6.2017

On September 5, 2017, the Trump administration announced that it was rescinding the Deferred Action for Childhood Arrivals (DACA). The announcement came from U.S. Attorney General Jeff Sessions, who indicated that the Department of Homeland Security is implementing a “wind-down process” instead of a sudden termination, to allow Congress to consider legislation that could replace DACA.

The decision to end DACA has far reaching consequences not just on approximately 800,000 young people covered under the program, but also on thousands of U.S. companies nationwide.

What is DACA?

DACA is an immigration program that former President Obama instituted in 2012 by executive order, protecting certain undocumented youth. The program provides a two-year Employment Authorization Card/Document (EAC or EAD) and it also shields beneficiaries from deportation during the two-year validity period, assuming they continue to pose no risk to public safety and do not engage in any crimes. Beneficiaries have been able to apply for renewal of their DACA benefits for additional two-year periods, for as long as the program has been in place and as long as they continued to meet the criteria.

DACA does not provide a green card (permanent residence), or citizenship and it does not, by itself, make beneficiaries eligible for any other immigration benefit, whether temporary or permanent.

Who could get DACA?

To be eligible for DACA, the applicants had to meet all of the following criteria:

• Came to the U.S. before turning 16;
• Lived in the U.S. continuously since at least June 15, 2007;
• Were physically present in the U.S. on June 15, 2012;
• Had no legal immigration status as of June 15, 2012;
• Were under the age of 31 as of June 15, 2012;
• Obtained a U.S. high school diploma or GED certificate, or were in the process of obtaining one, or is an honorably discharged veteran of the U.S. Coast Guard or Armed Forces;
• Did not commit any felonies, or one significant misdemeanor, or three minor misdemeanors;
• Did not pose a risk to public safety or national security.

What happens to DACA beneficiaries now that the government terminated the program?

According to the information provided by DHS on September 5, 2017, individuals can expect the following regarding their DACA/EAD applications:

Validity of existing DACA/EADs: current DACA/EADs remain valid until their expiration date. Individuals who still have a valid, unexpired DACA/EAD card may continue to work and be present in the U.S. until their current DACA/EAD expires.

Applications for initial DACA/EADs already pending: USCIS will continue to process all DACA/EAD applications for initial DACA requests that were received and accepted by the agency as of September 5, 2017.
Renewal of existing DACA/EADs: USCIS will continue to process all DACA/EAD renewal applications that were received and accepted by the agency as of September 5, 2017. In addition, USCIS will accept properly filed renewal applications until October 5, 2017, from beneficiaries whose DACA/EAD validity expires between September 5, 2017 and March 5, 2018.

New applications for initial DACA/EADs: no longer accepted after September 5, 2017.

Follow the table below to find out if you can still file for DACA/EAD after September 5, 2017:

Note that USCIS must receive a complete application for renewal no later than October 5, 2017. Applications mailed on October 5, 2017, that will arrive at USCIS after that date, will not be accepted.

What happens to DACA beneficiaries after their DACA/EAD expires?

Once the DACA/EAD expires and cannot be renewed, the beneficiaries will no longer be shielded from deportation and they will no longer be authorized to work in the U.S., unless they are able to obtain legal status and employment authorization through other means.

Some DACA beneficiaries may be eligible for other immigration benefits, such as a victim visa or even permanent residence. These benefits are not connected to their DACA status. DACA beneficiaries are strongly encouraged to obtain competent legal advice to find out if they have any viable immigration options outside of DACA.

Will DACA beneficiaries be placed in removal/deportation proceedings when DACA expires?

USCIS has repeatedly stated that information provided as part of DACA applications will not be proactively used or sent to ICE (Immigration and Customs Enforcement) for purposes of initiating removal proceedings. After the Trump administration announced on September 5, 2017, that DACA would be terminated, USCIS again stated it would not use DACA information for purposes of immigration enforcement/deportation, unless the individual poses a risk to public safety or national security, or otherwise meets the criteria for issuance of a Notice to Appear. That criteria generally includes denial of certain applications for immigration benefits, cases involving fraud to gain an immigration benefit, and cases involving criminal aliens.

However, U.S. immigration law states that individuals present in the U.S. without legal status or authorization are removable/deportable, even if they did not commit any crimes or are not a risk to public safety. Therefore, if a DACA beneficiary whose DACA has expired without the possibility of renewal comes to the attention of ICE through means independent of the information collected through DACA applications, that individual may be placed in removal proceedings and ultimately removed/deported from the U.S.

Can DACA beneficiaries still travel outside the U.S.?

Effective September 5, 2017, USCIS no longer approves any I-131 Applications for Travel Document/Advance Parole related to DACA applicants. Therefore, no DACA-related travel authorizations will be issued as of September 5, 2017. USCIS will administratively close all I-131 applications associated with DACA that are currently pending, and will refund the application fees.

DACA-related travel authorizations/advance parole approved before September 5, 2017, remain valid until their expiration date and their beneficiaries may use them while still valid. However, U.S. Customs and Border Protection (CBP) retains discretion whether to allow any person into the U.S. Therefore, DACA beneficiaries are cautioned that, even though they may be in possession of a valid travel authorization/advance parole, they may still be denied entry into the U.S. if they travel abroad.

Are there any legislative attempts to replace DACA?

The Trump administration is phasing out of DACA instead of terminating it abruptly, in order to allow time for Congress to explore a legislative solution. There have been several legislative attempts in recent years to provide these 800,000 young individuals legal status, although none has been successful.

A well-known legislative attempt is the DREAM Act (Development, Relief, and Education for Alien Minors Act), that was introduced several times since 2001, either as a stand-alone bill or as a component of other immigration reform bills. The DREAM Act beneficiaries, referred to as “DREAMers,” would have the ability to obtain legal status based on education, military service and, in some versions of the bill, through employment, with a path to permanent residence and ultimately U.S. citizenship. Because the DREAM Act was never passed by Congress, it never became law. The most recent DREAM Act version was recently introduced on July 20, 2017, through a bipartisan effort of Senators Lindsey Graham (R-SC), Jeff Flake (R-AZ), Dick Durbin (D-IL), and Chuck Schumer (D-NY). Congress has not yet acted on this latest bill version.

Another recent legislative attempt to address the impending end of DACA is the BRIDGE Act (Bar Removal of Individuals who Dream and Grow our Economy Act), introduced by Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) in January 2017. The BRIDGE Act would have essentially turned DACA from an executive order program to an actual law, giving beneficiaries the same benefits as DACA, for a validity period of three years. Although not a path to permanent status, the BRIDGE Act would have allowed Congress additional time to implement permanent legislation. Congress has not yet taken action on the BRIDGE Act.

We will continue to monitor the phase-out of DACA and any legislative developments attempting to replace it, and we will provide timely updates. In the meantime, if you have any questions regarding DACA or any other immigration benefits, do not hesitate to contact Raluca (Luca) Vais-Ottosen at (608) 252-9291 or rvo@dewittllp.com.